69 N.W. 197 | N.D. | 1896
The object of this suit is to hold the defendants, as sureties upon a bond, liable for the embezzlement of one of the principals in such obligation. The Standard Oil Company, the plaintiff herein, having selected as it agents at Mayville, in this
It is urged that by the use of the words “or either of them” the parties intended to cover the individual defalcation of either member of the firm as well after the dissolution of the firm as before. But we are unable to discover any justification for such a construction of the instrument. We think that these words were employed (unnecessarily employed, it is true) to express what the law would have implied had they been omitted; i. e. that both partners need not join in the wrongful act to render all parties to the obligation liable. The bond was given to secure the paintiff from loss growing out of the agency held by the co-partnership, and there is nothing in its language to indicate that the parties were contracting with reference to a possible dissolution of the partnership and the continuance of the agency by one of the firm. Other provisions of the bond indicate the exact reverse. The instrument declares that “the subscribing parties also firmly bind' themselves to sustain and pay to the Standard Oil Company, not to exceed the amount of this bond, any loss resulting to the said company through the theft or fraud on the part of said Arnestad & Eggerud, or any one to whom they may intrust the business of the company.” Again, the bond provides that: “If the said Arnestad & Eggerud shall faithfully and accurately perform the duties as agents for the said Standard Oil Company, and shall correctly account for all stock or funds belonging to the said company which shall be intrusted to him or
Our attention has been called to certain decisions which it is urged with great earnestness are opposed to the authorities already cited, and we are requested to follow them as enunciating the sounder doctrine. These decisions are Palmer v. Bagg, 56 N. Y. 523, 64 Barb. 641; Hayden v. Hill, 52 Vt. 259. But, in our judgment, these cases are plainly distinguishable from the case before us for final settlement. Their facts were different from the facts of this controversy in vital particulars. The sureties there had
Finally, it is said that it does not appear that the plaintiff knew of the withdrawal of Eggerud from the firm, and that hence it follows that the old firm, as a firm, was still liable to the plain
We are unable to agree with counsel for plaintiff that there is not sufficient evidence of the dissolution of the firm of Arnestad & Eggerud. The evidence on the point is very satisfactory. Nor do we find anything in the case to rebut it. The deficit sued for having resulted from misappropriation of funds by Arnestad after Eggerud had retired from the business, the District Court was right in rendering judgment for the sureties on the bond.
It follows that such'judgment must be affirmed, and-it is so ordered.